implementing gender equality and mainstreaming in an enlarged european union – some thoughts on...
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Implementing Gender Equality andMainstreaming in an Enlarged EuropeanUnion – Some Thoughts on Prospectsand Challenges for Central EasternEuropeSamantha VellutiPublished online: 12 Apr 2011.
To cite this article: Samantha Velluti (2005) Implementing Gender Equality and Mainstreamingin an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central EasternEurope, Journal of Social Welfare and Family Law, 27:2, 213-225, DOI: 10.1080/09649060500168200
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European Section
Edited by Joanne Hunt & Chloe J. Wallace
Implementing Gender Equality andMainstreaming in an EnlargedEuropean Union – Some Thoughts onProspects and Challenges for CentralEastern Europe
Introduction
This article considers the adoption and implementation of gender equality law
following the 2004 enlargement of the European Union that incorporated a number
of Eastern Europe countries. It addresses the question of how effective ‘soft’
coordination strategies – such as, for instance, the Open Method of Coordination
(OMC) and gender mainstreaming – can be in helping Central Eastern European
Countries (CEECs) to fully enforce gender equality legislation at all levels of policy-
making. The analysis aims at being fairly comprehensive, in terms of considering all
of the eight CEECs which acceded to the EU on 1 May 1 2004 (The Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Bulgaria and
Romania are scheduled to join in 2007). It considers the condition of ‘post-
communism’ which characterises all CEECs and which creates a degree of
commonality between them (Sadurski, 2002: 2), through their sharing of similar
problems stemming from the post-1989 economic transition to a neo-liberal
economic system.
The article is organised into two main sections. The first section examines the
transposition of EU gender equality acquis into national legislation, as required by the
Accession negotiations (namely, Chapter 13 on social policy and employment), and
evaluates remaining problems in fully incorporating the EU gender equality acquis in
CEECs. The second section focuses on the use of soft law instruments as a way of
ensuring the full implementation of EU gender-equality goals. In particular, it
examines to what extent the OMC could be employed as an appropriate policy
learning tool to identify areas where an initiative of the Community may be deemed
necessary and, secondly, whether the OMC combined with a gender mainstreaming
Journal of Social Welfare and Family LawVol. 27, No. 2, June 2005, pp. 213–225
ISSN 0964-9069 print/1469-9621 online # 2005 Taylor & Francis Group LtdDOI: 10.1080/09649060500168200
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strategy, which attempts to integrate a gender perspective into all levels of decision
and policy-making processes, may strengthen the adoption and implementation of
genuine gender equality measures.
The main argument of the paper is that a way of ensuring the effective
transposition of the EU gender acquis into CEECs’ legal systems could be achieved by
transcending the ‘hard/soft’ law debate. Thus, rather than considering the OMC and
the gender mainstreaming strategy on the one hand, and gender equality directives
on the other hand as opposing or alternative modes of governance, the aim should
be, instead, to identify ways of establishing a stronger dialogical relationship between
them. This would conjugate the strengths of both forms of policy-making. Such a
policy mix could represent a leverage for the introduction of reforms in the area of
gender equality in CEECs whilst, at the same time, respecting their national
characteristics and regional peculiarities.
The Implementation and Enforcement of the EU Gender Equality acquis in
CEECs: Selected Aspects
Gender Equality in the European Union
The promotion and strengthening of gender equality has become an established
priority policy of the Community agenda and has been held on numerous occasions
by the European Court of Justice to be a fundamental right under Community law
(e.g. Case 149/77, Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena
(III) [1978] ECR 1378; Case C-13/94, P v. S and Cornwall County Council [1996] ECR
I-02143). In addition, in the Community legal order the principle of equality has the
status of a general principle of EC law (Case 149/77, Defrenne v. Societe Anonyme
Belge de Navigation Aerienne Sabena (III) [1978] ECR 1378). As such, it acts as a
binding standard on the European Institutions and national authorities.
Since the inception of the Community, EC gender equality law has made a positive
and important contribution to combating discrimination and has developed into
a principle of constitutional dimensions (More, 1999: 541). The reason for this is
that it has advanced in line with both the economic and social objectives of
the Community, as exemplified by the case law of the European Court of Justice
on Article 141 EC and the legislation constructed around it1. This also explains
why gender equality law is one of the most highly developed areas of EC social
policy.
The importance of gender equality was given new impetus by the insertion of
Article 13 EC into the EC Treaty, which gave the Community further competence to
adopt anti-discrimination legislation. In particular, the Council was given the power
to adopt legislation aimed at fighting discrimination on grounds of ‘sex, racial or
ethnic origin, religion or belief, age, disability and sexual orientation’. Article 13 EC is
the legal base of various Community measures such as, for example, Directive 2000/
78/EC, establishing a general framework for equal treatment in employment and
occupation (the Framework Employment Directive), OJ 2000, L303/16; Directive
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2000/43/EC, implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin (the Race Equality Directive), OJ 2000, L180/
22; Decision 2000/75, establishing a Community Action Programme to combat
discrimination (2001–2006), OJ 2000, L303/23; Directive 2004/113/EC, implement-
ing the principle of equal treatment between men and women in the access to and
supply of goods and services, OJ L373/37. In addition, Article 13 EC brought the
concept of gender equality beyond the area of employment. This change was
particularly significant given that, until then, this principle remained limited in scope
and concerned employment-related sex discrimination.
At the same time, parallel changes in the typology of tools and techniques have
been introduced into EU policy-making with the aim of complementing these new
legislative measures. These changes signify the integrationist approach at the
European level for ensuring gender equality in all areas of EU law and policy. In
particular, the main soft law tool to reduce discrimination based on gender has been
gender mainstreaming. This has been defined as, ‘the systematic consideration of the
differences between the conditions, situations and needs of women and men in all
Community policies, at the point of planning, implementing and evaluation’ (COM
(96) 650 2).
Furthermore, developments that have taken place in recent years are evidence of
the European Union’s ongoing commitment to gender equality. These developments
include the establishment of a Community framework strategy on gender equality
(COM (2000) 335 final), which combines traditional forms of legislation with soft
law instruments and so-called ‘proactive’ with ‘reactive’ measures. They also include
the creation of an ad hoc and independent body; namely, a European Institute for
Gender Equality (COM (2005) 81 final). This is entrusted, inter alia, with the tasks of
gathering and disseminating information and best practices, promoting dialogue and
partnerships and raising awareness. Related developments include the adoption of a
directive on gender equality outside the area of employment (Council Directive 2004/
113/EC) and the proposal of recasting of gender equality directives (COM (2004) 279
final).
In the next section, the analysis focuses on the extent to which the EU gender
equality acquis has influenced the promotion of equal opportunity policies in CEECs.
In particular, the study examines the adoption and implementation of gender-
equality legislation and policies, before and after EU accession.
Gender Equality Policies in CEECs
So what claims can be made for gender equality in CEECs? In order to answer this
question – and to have a full understanding of gender equality policies in CEECs – it
is useful to start by looking at the constitutions of these countries.
The EU equality and anti-discrimination constitutional provisions have been
frequently used in the process of constitutional review in CEECs (Sadurski, 2003: 3).
While most of the constitutions limit themselves to the prohibition of discrimination
or a general proclamation of the principle of equality, other clauses also provide for
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special protection for specified social groups that are generally considered to be in a
disadvantaged position. These include, for example, pregnant women (Article 66
Hungarian Constitution) and mothers (Article 47 Bulgarian Constitution). These
developments are partly explained by the growth of greater inequality, associated with
the emergence of a market economy, combined with ‘ingrained egalitarian societal
attitudes’ (Sadurski, 2003: 1).
It is in this context that, towards the end of the 1990s, decisions related to gender
equality were given greater importance in the case law of the constitutional courts of
CEECs (Sadurski: 2003: 7). However, the number of cases on gender inequality
lodged before ordinary courts still remains relatively small (Sloat, 2004: 67). This is
due to a variety of reasons. Firstly, after the collapse of communism there was a
reaction to the economic and social values that underpinned that system. This often
manifested itself in a resentment of any form of intervention based on labour
legislation. Alongside this, in most CEECs there was (and remains) a strong
conviction that a liberal–democratic political system combined with a market
economy and a minimum laissez-faire state would automatically ensure democracy,
the rule of law and, consequently, individual equality. In addition, the post-1989
economic transition, combined with the macroeconomic adjustments necessary to
join the European Union, have impacted negatively on the economic situation of
women. In particular, the move to a new economic system has increased the levels of
unemployment, especially that of women, and reduced state support for childcare
and family policies. More precisely, even though most of this support has remained,
the increase in unemployment and inflation caused by structural reforms has
undermined the capacity of the state to fund childcare and family policies (Pascall &
Kwak, 2004: 10–11).
Furthermore, before 1989 the ideal of equality between women and men did not
correspond to a truly embedded notion of gender equality in society. It pertained,
rather, to a rhetorical discourse of equality in accordance with the principles of
Marxism–Leninism. The socialist state expected women to participate fully in the
post-war process of ‘building socialism’. It not only ensured women’s economic
independence but also enacted ‘protective’ maternity and childcare laws, and
provided adequate infrastructure such as, for example, nurseries, school meals,
comprehensive healthcare provisions, and cheap and efficient transport. The state
also actively encouraged a negative perception of women who chose motherhood
alone and worked only in the home. Employed mothers were the preferred ideal
(Sloat, 2004: 6).
However, despite the rhetoric of equal rights in CEECs, gender ideology towards
the family and motherhood led to the maintenance of a traditional notion of the
gender contract. Consequently, various forms of discrimination against women, both
in the legal system and in society, have persisted. For instance, in the labour market
only a very small percentage of women have higher managerial positions (this is
despite their higher levels of education) and the wage gaps are often extremely high
(see the Joint Assessment of Employment Priorities in Poland 2001: 29). In some
countries there has also been a tendency among employers of small and medium
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firms to follow discriminatory practices; such as, for example, demanding pregnancy
tests prior to offering an employment contract to a woman (Sadurski, 2003: 6).
Moreover, before accession there was no effective application of the equal pay for
work of equal value principle, even though it was contained in most constitutions
and labour codes. This was partially explained by the fact that often in the legislation
there was no definition of either remuneration or of the concept of ‘work of equal
value’ (Sloat, 2004: 8).
In addition, in most circumstances the discrimination is the result of societal
norms and prejudices which manifest themselves in the assignment of specific gender
roles in the labour market. These stereotype male and female professions such as, for
example, managerial work for men and secretarial work for women. Finally, there are
also high levels of under-representation of women in the decision-making process of
these countries. This includes representation in parliamentary and local bodies, in
government and in the higher positions of the judiciary. A number of proposals for
increasing women’s participation have been put forward but most of them have
failed. Once again, this is a consequence of the transition to market economies; under
the communist regime, there were fixed quotas ensuring a high representation of
women.
An overly narrow definition of the ‘political’ has blocked initiatives for a greater
level of political participation on the part of women in post-socialist systems (Jalusic
& Antic, 2004: 3), and demands for the introduction of mechanisms that would
ensure equal participation have often been perceived as illegitimate. Structural
discrimination persists due to the assumption that general anti-discriminatory laws,
and the mechanisms of legal and constitutional complaint, suffice for the realisation
of equality. As a result, even though some of these countries have provisions
containing special clauses for specific social groups, these provisions do not provide
for the setting up of supportive and positive action mechanisms for ensuring equality
(Sadurski, 2003: 15). The socialist legacy has instilled an aversion to quotas or other
positive measures to achieve gender equality in the political system (Choluj &
Neusuess, 2004: 5).
However, despite this scenario, several regional networks of women’s non-
governmental organisations (NGOs) emerged at the end of the 1980s. These NGOs
play a critical role in fostering consensus building and partnerships, in engaging in
advocacy at regional level and in promoting linkages at the global level. Examples
include the KARAT-Coalition, the Network of East/West Women-Polska and Astra.
Moreover, in the last few years some elements of the mechanisms needed for
the implementation of equal opportunity policies have been established. These
mechanisms have been created as a result of the positive impact of the 1995 UN
Conference on Women in Beijing. This conference dealt with the elimination of all
forms of discrimination against women, and the preparation of national action plans.
Alongside the pressure exerted by women’s NGOs and the initiatives of certain
political parties, there is finally, but not least, within the process of EU accession,
the adoption of the Community acquis; in particular, EU Directives on equal
opportunities and equality (Jalusic & Antic, 2004: 3).
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Implementation and Enforcement of the EU Equality Acquis in CEECs
In this section, the analysis is subdivided into two parts. First, we will start by looking
at the national mechanisms for implementing equal opportunity policies in CEECs.
Second, we will focus on the current situation of the implementation of EU gender
legislation and identify some of the problems concerning its enforcement. During the
communist regimes, there were ad hoc women’s councils. These were considered to be
the official representatives of women. They operated both locally and at workplaces,
and their members were often appointed by the party’s ruling body. Post-1989, most
CEECs did not have separate institutions and bodies to deal specifically with gender
equality; thus governmental bodies overseeing women’s issues were attached to, and
divided among, several ministries (Jalusic & Antic, 2004: 4).
Government mechanisms mainly consist of special consultative bodies, such as the
Office for Women’s Politics in Slovenia, or coordination committees like those in
Slovakia. There are also special ministerial sections that are generally part of various
ministries – the latter include the Ministry of Labour, the Ministry of Social Affairs
and the Ministry of the Family. In most circumstances, these bodies’ circumstances
are not created by a separate act of parliament. For example, in Poland the Secretariat
of the Government Plenipotentiary for Equal Status for Women was established by
ordinance of the Council of Ministers in 2001. In practice, this means that the
existence and funding of these bodies are subject to the political will of the ruling
government. Linked to this, they lack any powers to draw up laws or shape
government policy regarding gender equality. However, in the wake of the EC anti-
discrimination directives this situation has started to change. For example, in
Hungary an authority on fostering equal opportunity has been established by
Parliamentary Act No. 125 of 2003. Nevertheless, the mechanisms provided for
implementing gender equality are weak because there is no consistent government
policy of equal opportunity and the mandates of these bodies are often unclear.
With regard to the Community gender equality acquis, all CEECs have
implemented EU equality directives even though, in some areas, legislation is still
in the process of being passed (Sloat, 2004). Under Accession negotiation Chapter 13
(social policy and employment), social conditionality required the implementation of
both the hard acquis – that is, EU health and safety rules, a range of EU social
legislation, such as, for instance, on working time, parental leave, equal opportunities,
mechanisms for social dialogue – and the soft acquis. The latter entails a shift from
social law and legislative initiatives towards policies aimed at fostering employment
creation, social protection and social inclusion. Such measures are implemented on
the basis of non-binding legal instruments.2
In order to comply with the EU gender equality acquis, most of these countries
have either introduced additional provisions in their constitutions and/or labour
codes, or introduced supplementary legislation to clarify, strengthen or amend
existing labour codes’ clauses. In other circumstances, they have introduced new
legislation. However, even though gender equality laws are more or less in place in all
CEECs, having equal opportunities laws is not enough to provide an adequate system
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for the enforcement of gender equality legislation. There are a variety of reasons for
this (Sloat, 2004: 55). First, there is little familiarity with certain concepts such as, for
example, the burden of proof in sex discrimination cases, part-time work regulations
and self-employment. Second, the complexity of the new legislation and the lack of
training of the bodies entrusted with their enforcement. Third, there is the problem
of the lack of awareness of gender legislation, due to the little amount of information
provided by governments. Fourth, there is little participation (and sometimes
interest) of the social partners in the implementation of equal opportunities policies,
and not enough coordination between the former and other actors like NGOs and
governmental bodies. There is some evidence that the OMC is gradually helping to
give more voice to civil dialogue, and that this has started to exercise some pressure
on national governments to take action against poverty and social exclusion (Szakmai
Szovetseg, 2003), but there is not enough data to suggest that this is taking place in all
CEECs and in the same way. Fifth, and more broadly, there is the aversion caused by
the socialist legacy.
The Role of Soft Coordination Strategies in the Implementation of Gender
Equality in CEECs
In the previous sections we have seen that the implementation and enforcement of
gender equality legislation and policies in CEECs are hindered by a series of factors,
some of which also concern other EU Member States. Certainly the fact that all ten
EU gender equality directives are more or less in place in CEECs is a first and
important step towards the achievement of equality. However, the next step is to
identify appropriate measures which can ensure the effective implementation of the
new gender equality legislation. This section, therefore, looks at the use of soft law
instruments as a means of ensuring the full implementation of EU gender equality. In
particular, it examines to what extent the OMC is an appropriate policy learning tool
to identify areas where an initiative of the Community may be deemed necessary and,
secondly, whether the OMC combined with a gender mainstreaming strategy, which
attempts to integrate a gender perspective into all levels of decision and policy-
making processes, may strengthen the adoption and implementation of genuine
gender equality measures.
In order to evaluate the effectiveness of the OMC together with a gender
mainstreaming policy, the analysis is going to focus on the European Employment
Strategy (EES). Firstly, this is the most developed coordination process under the
OMC and, secondly, it was in the context of the EES that the commitment to gender
mainstreaming on the part of the European Union and the Member States has been
made more visible. Hence, the EES, at least in principle, has provided a new platform
for the development of a European-wide approach to reducing gender inequalities.
The EES is laid down in the Employment Title of the EC Treaty, Title VIII, and it is
an important part of the Community social acquis. The EES is an iterative process
based on open participation in the implementation of policies, consensus building,
exchange of best practices and information, use of benchmarking and, more broadly,
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cooperation and coordination within a multi-tiered framework of governance
(Velluti, 2003). In particular, Member States are under an obligation to draw up
reports called National Action Plans for Employment (NAPs), pursuant to so-called
Employment Policy Guidelines (EPGs). These NAPs are subject to assessment by the
European Commission, which issues recommendations based on these assessments.
However, the constraints on Member States are not legal in nature since this new
regulatory mode lacks of a system of sanctions and enforcement procedures; it is,
rather, a moral and political constraint.
One of the most important objectives of the EES – which is also one of its most
important achievements – is the promotion of policy learning and innovation
through consensus building and the creation of partnerships between different
policy-makers. In particular, the submission of NAPs by Member States in
cooperation with the social partners, in accordance with common objectives and
indicators established in the annual EPGs, and the evaluation made by the European
Institutions through the Joint Employment Report (JER), and the Assessment Report
on Implementation (ARI), is illustrative of the way that the ‘re-regulation’ or ‘re-
nationalisation process’ operates in practice. The EES, therefore, promotes the
creation of new employment and labour market paradigms through the exchange of
best practices and benchmarking, and by linking various areas of social policy.
However, the operation of the EES presents various weaknesses such as, for
example, the fact that the information on specific policies has often been
insufficiently detailed, and that assessing the data available and drawing cross-
country comparisons has been hard to make due to different national labour market
patterns. Hence, while the NAP process produces a large amount of information, the
level of policy learning resulting from it is difficult to assess.
Nevertheless, the reference made to the EES in some labour law directives is
evidence of the contribution that the EES can make to policy learning and innovation
within the European Union (Velluti, 2003: 390–392). For instance, Council Directive
1999/70/EC on Fixed-term Work, Directive 2000/43/EC on race and ethnic
discrimination and Directive 2000/78/EC, which establishes a general framework
for equal treatment in employment and occupation, all emphasise the importance of
the EES as a valuable policy tool to promote anti-discrimination measures and, in the
case of the Fixed-Term Directive, to ensure both the flexibility of employment
contracts and security of the workers.
Similarly, during the pre-accession phase CEECs have been defining labour market
and employment policies in line with European standards, and progressively
adjusting institutions and policies to the EES in order to allow the full
implementation of the Employment Title as from accession. To this end, in 1999
the European Commission initiated a cooperation process on employment with these
countries. This also aimed at ensuring that both the present EU financial support for
accession and the preparation for European Social Fund (ESF) implementation
would focus on supporting the identified employment policy priorities. Several of the
CEECs drew up employment action plans containing programmes structured on the
basis of the EES, the so-called ‘Joint Assessment of Employment Priorities’ (JAP). At
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the beginning of 2002, seven CEECs were evaluated. In particular, shortly after the
signature of the JAPs the main commitments were discussed in technical seminars
between the European Commission and representatives of different ministries,
regional authorities, the Public Employment Services (PES) and the social partners.
Subsequently, the JAPs were reviewed in a second and third round. This reviewing
process helped to identify strategic challenges, some of which are also shared with the
current Members States. For example, in the 2001 JAP of Poland, there is evidence
that some first and important steps have been made with regard to equal
opportunities with the identification of various policy objectives. These include
raising awareness through information initiatives in the media and schools, and
promoting partnerships with the social partners in order to start dismantling the
traditional gender contract which is deeply embedded in Polish society.
Having looked at the main contribution of the EES as a process which promotes
policy learning and partnerships, we can now move on to assess the development and
implementation of a gender mainstreaming strategy within the EES. As we have seen,
gender mainstreaming requires gender equality issues to be built into all policy
programmes and it ensures that gender effects are taken into consideration in the
initial design and further implementation of policy measures. In addition, it also has
an inherent transformative approach (Rees, 1999; Beveridge & Nott, 2002) since it
relies on policy innovation processes.
Since its launch the EES has helped to increase the commitment of the European
Union towards gender equality or, better said, to make its commitment more visible
(Rubery, 2002: 500). This is by way of including equal opportunities between women
and men as the then-fourth pillar of the EPGs, alongside employability,
entrepreneurship and adaptability, and by including gender mainstreaming as one
of the guidelines (G 19). This required that Member States took into consideration
the gender impact of all policies under each pillar.
Moreover, at the 2000 Lisbon Summit a specific target of 60% by 2010 for the
female EU employment rate was established. In addition to G 21, which provided for
the design, implementation and promotion of family-friendly policies, a new
benchmark requiring Member States to expand childcare provision was introduced.
The commitment to gender equality has gathered momentum in subsequent years
and an interim target of 57% for the female employment rate was agreed under the
Swedish presidency. Further gender indicators were also agreed.
However, the problem with gender equality is that, ‘there are many aspirations
lying behind an apparent common commitment to pursue equal opportunities’
(Rubery, 2002: 503). In addition, even though almost all Member States had put in
place some formal mechanism for gender mainstreaming, the effectiveness of these
measures and, more precisely, the extent to which they were accompanied by the
setting up of ad hoc departments, institutions and bodies at the ministerial and
inter-ministerial level varies. So to does the adoption of concrete measures, such as
the development of specific actions within the national decision and policy-making
process, with only a few Member States having taken such measures. In addition, the
approach taken towards equal opportunities has been shaped by the objectives of the
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EES. More precisely, the promotion of equal opportunities has been greater where it
was compatible or, better said, where it coincided with the aims of the EES. Examples
include improving women’s access to the labour market and favouring schemes for
enhancing female entrepreneurs.
There is also a problem with the benchmarking process of the EES, in that it does
not provide the basis for the adoption of further measures, but is limited to the
identification of benchmark targets (Rubery, 2002: 521). More broadly, this is a
weakness of the strategy in that the focus is more on management by objectives and
on an economic rationale (as opposed to a human rights, or more simply a social
solidarity justification). Thus it ends up becoming too concerned with achieving
quantified targets established a priori, rather than with using the information
provided in order to adopt a genuine mainstreaming strategy; i.e. one that focuses on
quality and aims at changing the economic and social structures of those Member
States which maintain a traditional concept of women in the labour market.
Following the Barcelona European Council, which called for a strengthening of
the EES, the European Commission issued a series of Communications. In the
Communication Taking Stock of Five Years of the European Employment Strategy
(COM (2002) 416 final), it reviewed the experience of five years of the EES and
broadly outlined a redesign of the EES for the future. In addition, it streamlined the
employment and economic policy coordination processes with a shift towards a more
medium and longer-term approach. This had the aim (among others) of improving
the coherence and complimentarity of the various processes and instruments (COM
(2002) 487 final). These changes have had both positive and negative consequences
for the promotion of equal opportunities (Rubery et al., 2004). A positive
development was the definition of three overarching objectives; that is, full
employment, quality and productivity at work, and social cohesion and inclusion.
A negative consequence was that the redesign of the EES has meant that the Pillar-
structure on which it was based ceased to exist and thus the gender equality pillar has
been reduced to one guideline, G 6. Linked to this, it has reduced the visibility of
gender mainstreaming. Second, the streamlining process provides, in principle, the
opportunity for extending gender mainstreaming to the Broad Economic Policy
Guidelines (BEPG) process. However, it also carries with it a risk of reducing the
social dimension and enhancing the economic rationale underpinning the EES.
Moreover, a study conducted by Rubery et al. (2004: 609–617) on the 2003 NAPs
shows that almost all the Member States failed to adopt a stronger and more coherent
gender equality approach. The findings of that study show developments to have
been, on the whole, rather disappointing in comparison to the achievements obtained
during the first years of implementation of the EES. In those years, there was clearly
more commitment towards improving or strengthening equal opportunities policies.
An analysis of JAPs reveals a similar scenario with regard to CEECs. It also shows that
in most cases the drafting of the JAPs has been a purely administrative exercise with a
lack of political commitment from most governments of these countries (Velluti,
2004). In particular, gender equality policies were only mentioned in programmatic
terms rather than in terms of what had already been done.
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All of these considerations demonstrate that the practical application of gender
mainstreaming is complex. Furthermore, it shows that a commitment at the
European and national level (mostly ministerial level) through ‘soft’ coordination
processes is not enough to ensure an effective and proactive approach to gender
equality, even though it certainly represents a first important step in promoting
gender equality. Nonetheless, the fact that gender mainstreaming has been
introduced in the Constitutional Treaty among the list of objectives to which the
European Union is committed, and as a guiding principle in all the activities of the
European Union (Articles II-23, III-2 and III-3 CT), is to be welcomed.
However, once again, this is only a partial solution. This constitutional duty
should entail the definition of a true equality strategy. Such a strategy should
comprise two key elements: impact assessment of all legislation and policies, and
participation of affected groups in decision-making processes (McCrudden, 1999). In
short, a higher degree of representation of, and participation by, women. More
precisely, this means translating the principle of gender mainstreaming into an
everyday practice. Thus, the focus should not be on its definition, but rather on
establishing an effective process or strategy with a supportive political environment
and a strong organisational framework. This should focus on the twin objectives of
equality and diversity by way of combining strategies of inclusion, reversal and
displacement (Shaw, 2004: 14). With regard to impact assessment, it would be
particularly effective to introduce a gender dimension into the budget of national
governments. In other words, gender budgeting could be a valuable way of
monitoring and assessing the different impacts of policies on women and men. With
regard to increasing women’s participation and representation, the OMC and, in
particular, the EES as a participatory form of democracy could well serve to promote
a ‘model of mainstreaming in action’ (Shaw, 2004: 18).
Hence, a solution could be to strengthen the OMC and the gender mainstreaming
processes. This could be done by, for example, increasing the use of more explicit,
quantified benchmarks and targets and a greater degree of transparency. Also,
attention could be given to providing the basis for creating an institutional and
operational framework for the implementation of gender equality legislation at all
levels of policy-making, with a stronger dialogical link between these soft law measures
and Community Directives. In addition, this new framework could be strengthened
with a positive duty on all public authorities, including the judiciary, both at the
European and national levels (for example, the European Court of Justice has not yet
taken into consideration gender mainstreaming, see further Shaw, 2001) and with the
strengthening of extant enforcement mechanisms. This policy mix could represent a
leverage for the introduction of reforms in the area of gender equality in CEECs whilst,
at the same time, respecting their national characteristics and regional peculiarities.
Conclusion
CEECs have undergone, and are still undergoing, enormous upheaval in their
economic, political, institutional and socio-cultural structures. The process of re-
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nationalisation, which follows the transposition of the acquis communautaire into
national law and the shift towards a mainly neo-liberal economic system, has entailed
high costs of change in the short and medium term. In most CEECs, economic policy
measures and structural reforms have been enacted with the desire to join the
European Union and studies conducted on Eastern enlargement have shown that the
social dimension was not considered a top priority.
In addition, there continues to be some disparity between the transposition of
legislation and the ability to implement and enforce the acquis. Implementing and
enforcing the new legislation adopted pursuant to the EU gender acquis remains the
real test for CEECs. In this context, national administrative and judicial capacity and
frameworks (Emmert, 2004), as well as coordinated actions involving social partners
and NGOs to raise awareness and disseminate information to break gender
stereotyping, are of fundamental importance. It is, therefore, not an easy enterprise
to identify adequate policy solutions for the effective enforcement of gender equality.
The European Union has already been developing the integration process along
the lines of ‘diversity’. The main contention of this paper is that the policy instru-
ments employed in the context of the OMC could, if combined with a gender
mainstreaming strategy, help to promote the introduction of new proactive gender
equality measures in CEECs. In addition, this could provide the conditions for and,
more specifically, a solid political and legal framework for the implementation and
enforcement of gender equality directives in the enlarged European Union.
Notes
[1] There are ten EU equality directives: equal pay (75/117/EEC); equal treatment as regards access
to employment (76/207/EEC as amended by directive 2002/73/EC); equal treatment with
regard to statutory social security schemes (79/7/EEC); equal treatment with regard to
occupational social security schemes (86/378/EEC); equal treatment for the self-employed and
their assisting spouses (86/613/EEC); pregnancy directive (92/85/EEC); working time directive
(93/104/EC as amended by directive 2004/34/EC); parental leave (96/34/EC); burden on proof
in sex discrimination (97/80/EC); part-time work (97/81/EC).
[2] Detailed information about the Community acquis in the social field is available online,
,http://europa.eu.int/comm/employment_social/enlargement/acquis_front_en.htm. and
http://europa.eu.int/comm/employment_social/enlargement/negotiations_13_en.htm.
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